Earthquip PNG Limited v PNG Transport Holdings Limited (2012) N4652

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 19 April 2012
• Citation: (2012) N4652
• Docket Number: WS NO. 1866 of 2005
• Year: 2012

Full Title: WS NO. 1866 of 2005; Earthquip PNG Limited v PNG Transport Holdings Limited (2012) N4652

National Court: Gabi, J

Judgment Delivered: 19 April 2012

CONTRACT - claim for damages for breach of contract—allegations of mis- delivery of cartage—whether certain clauses of ‘Conditions of Carriage’ form part of the contract—whether defendant is liable for breach of contract—evidence suggests container being misdelivered - defendant breached contract - Judgment entered for plaintiff with damages, interest and costs to be assessed.

Facts

The defendant was engaged to deliver a container to the plaintiff’s yard at China Town but instead delivered it to PNG Readymix yard at China Town. The plaintiff had engaged the defendant on a number of previous occasions and this was the first time the defendant had misdelivered a container belonging to the plaintiff. Upon discovery that the container had been placed in PNG Readymix yard, the plaintiff asked the defendant to move it to its yard at China Town but the defendant failed to do so. While the container was at PNG Readymix yard, it was broken into and a number of items were stolen. The plaintiff claims damages for breach of contract.

Held;

The container was misdelivered and that the defendant breached the contract. Judgment is entered for the plaintiff with damages, interest and costs to be assessed.

Cases cited

Papua New Guinea Cases

Dowsett Engineering (NG) Pty Ltd v Edwards and Jordan Lighting [1979] PNGLR 426; Edwards v Jordan Lighting [1978] PNGLR 273; Lawrence Win v General Auto Centre Ltd (2009) N3680; Rabaul Stevedores Ltd v Benedict and Nancy Seeto [1984] PNGLR 248; Rabtrad Niugini Pty Ltd v ABCO Pty Ltd [1990] PNGLR 155

Overseas cases

L’Estrange v Gaucob [1934] 2 KB 394; McCutcheon v David MacBrayne Ltd [1964] 1 All ER 430 at 435; Olley v Marlborough Court [1949] 1 All ER; Thornton v Shoe Lane Parking [1971] 2 WLR 585

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JUDGMENT

1. GABI, J: Introduction: The plaintiff claims damages for breach of contract. The defendant was engaged to deliver a container to the plaintiff’s yard at China Town but instead delivered it to PNG Readymix yard at China Town. The plaintiff had engaged the defendant on a number of previous occasions and this was the first time the defendant had misdelivered a container belonging to the plaintiff. Upon discovery that the container had been placed in PNG Readymix yard, the plaintiff asked the defendant to move it to its yard at China Town but the defendant failed to do so. While the container was at PNG Readymix yard, it was broken into and a number of items were stolen.

2. The defendant’s case is that the misdirection was a result of instructions by the plaintiff’s employees, particularly Susan Watpore and Augustine Romogiam, to deliver the container to PNG Readymix yard due to unavailability of space in the plaintiff’s yard and that the signature of Augustine Romogiam on the delivery docket indicates acceptance by the plaintiff that it had been delivered in accordance with the contract pursuant to clause 7 of the Conditions of Carriage. Even if the container were misdelivered, the defendant is absolved from liability pursuant to clause 5 of the delivery docket, which excludes the carrier from liability.

3. The issues are: (i) whether clauses 5 and 7 of the Conditions of Carriage form part of the contract; and (ii) whether the defendant breached the contract.

4. The trial proceeded by way of affidavit evidence and oral testimonies. The following affidavits were tendered into evidence: (i) affidavit of David Warner dated 13th September 2010 (Exhibit P1); (ii) affidavit of Susan Watpore dated 10th September 2010 (Exhibit P3); (iii) affidavit of Armstrong Suvia dated 12th October 2010 (Exhibit D1); (iv) affidavit of Geoff Baker dated 12th October 2010 (Exhibit D4); and (v) affidavit of Carol Luhan dated 12th October 2010 (Exhibit D5). The deponents of the affidavits also gave sworn oral evidence.

Facts

5. On 4th November 2004, the plaintiff raised a Purchase Order number 782 requesting the defendant to pick up a container from the Lae Port Services wharf and deliver to Earthquip yard at China Town. The description of the job required to be performed written on the Purchase Order was:

“PLEASE PROVIDE SERVICE TO PICK UP 1 x 20 FT CONTAINER (#TRLU2813054) AT WHARF AND DELIVER TO CHINATOWN YARD.”

The driver picked up the container and delivered it to PNG Readymix yard, a different location, also in China Town. On delivery of the container to PNG Readymix yard, Augustine Romogiam, an employee of the plaintiff, signed the delivery docket. On realising that the container was delivered to the wrong location, the plaintiff requested the defendant to pick up the container and have it delivered to its yard at China Town but the defendant failed to do so. Whilst the container was at PNG Readymix yard, it was broken into and a number of personal items were stolen.

Evidence

The Plaintiff

6. David Warner is the...